Ottawa Citizen Continues Interesting Stories on Immigration

29th Nov 2011 Comments Off on Ottawa Citizen Continues Interesting Stories on Immigration

Last Updated on November 29, 2011 by Steven Meurrens

The Ottawa Citizen today published two more interesting pieces on the Immigration and Refugee Board and the Federal Court.

The first is titled “Access to Justice Should Not Look Like a Lottery“.

Did you know that:

  • Federal court judges deny 85% of all leave applications?
  • That once leave is the success rate is almost half?
  • That one judge granted leave in 60% of all cases, while another granted leave in less than 1.5% of cases?

The second is titled “Chill of ministerial comments erodes independence of Immigration and Refugee Board, former chair says

Interesting tidbits here include that:

  • That last year seven IRB members approved fewer than 10% of the asylum claims that they heard. By contrast, 15 members approved 70 percent or more of the claims that they ruled on.
  • One approved 94% of her claims, the other approved 0%.
  • IRB members make $120,000 per year.

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Data on Ministerial Relief Applications

28th Nov 2011 Comments Off on Data on Ministerial Relief Applications

Last Updated on November 28, 2011 by Steven Meurrens

The Federal Court just released a decision which contains the following useful information on Ministerial Relief applications.  As you can see, these applications are not processed particularly fast, and their chance of success is increasingly diminishing.

Request – Documents relating to:
Section 34(2) of the IRPA and comparable Section 19(1)(f) (iii)(B) of the former Immigration Act, R.S.C. 1985
Section 35(2) of the IRPA and comparable section 19(1)(l) of the former Immigration Act, R.S.C. 1985
Section 37(2) of the IRPA and comparable section 19(1)(c.2) of the former Immigration Act, R.S.C. 1985

1

The number of Ministerial Relief applications that have been submitted to date since the Immigration and Refugee Protection Act (IRPA) was enacted

247

18

11

2

The number of Ministerial relief applications that have been granted to date

24

3

0

3.

The number of Ministerial relief applications that have been submitted from 1992 up until when the IRPA was enacted 

(Information on record with the CBSA includes the timeframe from 1996 until IRPA was enacted)

37

3

1

4

The number of IRPA Ministerial relief applications that have been granted in this time frame 

(Information on record with the CBSA includes the timeframe from 1996 until IRPA was enacted)

115

0

0

5

The number of IRPA Ministerial relief applications that have been submitted in this time frame 

(Information on record with the CBSA includes the timeframe from 1996 until IRPA was enacted)

2002 – 20

2003 – 34

2004 – 32

2005 – 25

2006 – 20

2007 – 15

2008 – 16

2009 – 37

2010 – 

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Tensions over Judicial Independence, Chart Shows Judicial Review Success Rates per Judge

Tensions over Judicial Independence, Chart Shows Judicial Review Success Rates per Judge

28th Nov 2011 Comments Off on Tensions over Judicial Independence, Chart Shows Judicial Review Success Rates per Judge

Last Updated on November 28, 2011 by Steven Meurrens

Don Butler at the Ottawa Citizen has published a pair of fascinating articles about current tensions between the Canadian government and the Federal Court.  Both articles are worth a read in their entirety, as they contain numerous statistics, stories, and  quotes.

For example, did you know that:

  • A chief justice of the Federal Court contacted the president of the Canadian Bar Association and asked him to respond to Jason Kenney’s public criticisms of the judiciary?
  • That Conservative MPs tried (and failed) to haul Justice Boivin before a parliamentary committee to answer questions about one of his decisions?
  • That in the first half of 2011 judges appointed in the last three years were far less likely to quash decisions by government officers and tribunals on most immigration issues than judges appointed by Liberal prime ministers?
  • That following Kenney’s public criticisms of the judiciary overturned fewer (although not significantly) government decisions?
  • The former chair of the Immigration and Refugee Board has said that some board members have discreetly deferred to criticism that Jason Kenney made of the Board?

The series also featured the following extremely useful chart showing the judicial review success rate amongst the different judges.

The two stories are:

Series (part 1): Tough on refugees: Are non-Canadians getting a fair shake from our federal judges?

Kenney comments may be attempt to erode judicial independence, experts say

 

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Spousal Sponsorship Bar on Violent Spouses

24th Nov 2011 Comments Off on Spousal Sponsorship Bar on Violent Spouses

Last Updated on November 24, 2011 by Steven Meurrens

In April the Gazette announced that a sponsorship bar would soon come into effect prohibiting individuals that have been convicted of certain offenses from sponsoring family members.  One of the offenses that would result in a bar was violence against someone that the wannabe sponsor had dated, which seemed a little vague.  Now that the sponsorship bar has come into effect, and Citizenship and Immigration Canada has released a detailed Operational Bulletin on the matter, lets see if the if the new rule is a little clearer.

The Operational Bulletin starts by noting the gap in the law exposed by the Brar (2008 FC 1285) decision, where the Federal Court found that an individual who had murdered his brother’s wife was allowed to sponsor his own wife, as the Immigration and Refugee Protection Regulations did not specifically bar an individual who had killed a sister-in-law from sponsoring another family member.

Under the new Regulations, subject to certain exceptions, anyone convicted of an indictable offense involving the use of violence punishable by a maximum term of imprisonment of at least 10 years or an attempt to commit such an offense will be barred from sponsorship.

As well, subject to certain exceptions, anyone convicted of an offense that results in bodily harm to any of the following persons, or an attempt to commit such an offense against any of the following persons, will be barred from sponsorship:

  • a) a current or former family member of the sponsor,
  • b) a relative of the sponsor, as well as a current or former family member of that relative,
  • c) a relative of the family member of the sponsor,

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Our Immigration System, and the People that Work for It, Are Doing Just Fine

23rd Nov 2011 Comments Off on Our Immigration System, and the People that Work for It, Are Doing Just Fine

Last Updated on November 23, 2011 by Steven Meurrens

As an immigration lawyer, it is not often that I get to praise the men and women that work for the Canada Border Services Agency and Citizenship and Immigration Canada.  Indeed, I spend much of my day writing arguments challenging their decisions.  However, in the wake of the media hysteria following the Auditor General of Canada’s report on weaknesses in Canada’s visa system, I feel like a great big “calm down.. they’re doing just fine” is in order.

Judging by the media headlines, you would think that Canada’s borders were porous, with hordes of terrorists, serious criminals, and people with dangerous, contagious diseases flooding into our country.  You would think that the people working for the CBSA and CIC were all inexperienced, poorly trained rookies, unable to keep up with the flood of inadmissible people entering the country.  However, while there are certainly some procedures that can be changed, in my opinion, on the whole the CBSA and CIC are quite good at implementing Canada’s immigration laws.

As the Auditor General report noted, in 2010 Canadian immigration officials processed over a million applications for people seeking temporary residence in Canada, and 317,000 applications for permanent residence.  I have yet to read one media report that mentions an actual incident of an inadmissible person gaining entry to Canada and doing something that causes a danger to the public, let alone one inadmissible person being admitted to Canada as a result of an inexperienced immigration officer.  The Auditor General’s report also does not mention one specific example.  It is all hypothetical.

Indeed, contrary to the perception of weak enforcement currently being created in the wake of the Auditor General’s report, it is more likely that people who do not pose a threat to the public are denied entry to Canada because of how broad Canada’s inadmissibility provisions are,

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Summary of Auditor General Recommendations to CIC and CBSA

22nd Nov 2011 Comments Off on Summary of Auditor General Recommendations to CIC and CBSA

Last Updated on November 22, 2011 by Steven Meurrens

The Auditor General of Canada has released its fall report, which contains a section on the process for determining inadmissibility to Canada.

The CBC provided a rather bleak summary of the Auditor General’s findings when it reported:

The audit identified a number of problems: it found that many of the criteria used by visa officers to identify high-risk applicants are outdated; CBSA analysts who provide security advice to visa officers have not received the necessary training; their work is rarely reviewed; and there was no evidence that mandatory checks were completed.

Wiersema said many of these problems have been identified by previous audits and the department has committed to fixing them, but they haven’t followed through on those promises.

“I find it disturbing that fundamental weaknesses still exist,” he said.”It’s time that CIC and CBSA work together to resolve them.”

Wiersema said the security manuals used by visa officers when making their decisions haven’t been updated since 1999. The audit also pointed out that medical screening for danger to the public has focused on syphilis and tuberculosis for the past 50 years, even though health professionals are required to monitor and report on 56 diseases.

Citizenship and Immigration has not reviewed whether visa applicants should undergo mandatory testing for some of those diseases and it also doesn’t review its decisions to grant visas later to ensure the right decisions were made.

“This means that CIC and CBSA don’t know if a visa was issued to someone who was in fact inadmissible,” Wiersema said.

The interim auditor general was asked at his news conference whether the flaws in the system means there are people who were granted entry to Canada who should have been kept out.

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Court Discusses Hybrid Offenses in the Refugee Context

21st Nov 2011 Comments Off on Court Discusses Hybrid Offenses in the Refugee Context

Last Updated on November 21, 2011 by Steven Meurrens

The Federal Court recently released an interesting case discussing the effect of a criminal charge or conviction abroad on an individual’s ability to claim refugee status in Canada.

In the non-refugee context, a foreign national is inadmissible to Canada if he has been convicted abroad of, or if he has committed abroad, an offense whose equivalent in Canada would be an indictable offense under an Act of Parliament.

As anyone who is familiar with Canada’s Criminal Code is aware, many criminal offenses are hybrid offenses, and the Crown can elect to proceed by summary trial or by way of indictment.

For example, s. 271 of the Criminal Code states that:

(1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 36(3)(2) of the Immigration and Refugee Protection Act addresses hybrid offenses.  It provides that for the purpose of determining inadmissibility to Canada an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offense.  The result is that people who are convicted abroad of minor offenses in their countries of origin are inadmissible to Canada because their offense is deemed to be indictable for the purpose of determining inadmissibility, even if it virtually impossible that the same offense if committed in Canada would actually be prosecuted by way of indictment.

Until recently,

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Entrepreneurs No Longer Have to Report Terms and Conditions

18th Nov 2011 Comments Off on Entrepreneurs No Longer Have to Report Terms and Conditions

Last Updated on November 18, 2011 by Steven Meurrens

On November 18, Citizenship and Immigration Canada released Operational Bulletin 360: Entrepreneur Terms and Conditions.  Coming off the heels of the government’s decision to temporarily suspend accepting new applications in the Entrepreneur Program, the Operational Bulletin makes life easier for those Entrepreneurs already in Canada.

Section 98 of the Immigration and Refugee Protection Regulations provides that Entrepreneurs must:

  • Control a percentage of the equity of a qualifying Canadian business equal to or greater than 33 1/3 per cent;
  • Provide active and ongoing management of the qualifying Canadian business; and
  • Create at least one incremental full-time job equivalent in the qualifying Canadian business for Canadian citizens or permanent residents.

As of February 1, 2012, active monitoring of terms and conditions for entrepreneurs will cease. However, Entrepreneurs will still be expected to comply with their conditions.

Accordingly, on December 1, 2011 Citizenship and Immigration Canada will counsel approved entrepreneur class permanent residence applicants to meet the conditions.  However, they will also be informed that they will only need to provide evidence showing that they met their conditions if specifically requested to do so by a Citizenship and Immigration Canada official. They will only be requested to do so if officers have a reason to believe that there has been non-compliance.

Citizenship applications will also not be delayed due to outstanding terms and conditions, provided the Citizenship Officer does not have reason to believe that the terms and conditions have been breached.

While this change does not affect a lot of people, it will significantly reduce the burden on those Entrepreneurs in Canada.

 

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Court Reminder that Humanitarian & Compassionate Requests have to be in Writing

17th Nov 2011 Comments Off on Court Reminder that Humanitarian & Compassionate Requests have to be in Writing

Last Updated on November 17, 2011 by Steven Meurrens

In Uddin v. Canada (Citizenship and Immigration), 2011 FC 1260, Justice Harrington rejected a judicial review of an immigration officer’s inside Canada spousal sponsorship.  While part of the decision dealt with procedural fairness, and the following interesting quote

One might wonder what duty one owes to a scofflaw who deliberately flaunts our laws and wallows back through the big muddy,

Justice Harrington also noted that the officer was not obligated to consider humanitarian & compassionate considerations because the applicant never requested that H&C considerations be considered in writing.

Regulation 66 of the Immigration and Refugee Protection Regulations states that:

A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing accompanied by an application to remain in Canada as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.

As Justice Harrington noted, there was plenty of time for the immigration consultant in this case to submit a request in writing.  As he did not, there was no obligation on the officer to consider them.

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Refugees and Transportation Loans

16th Nov 2011 Comments Off on Refugees and Transportation Loans

Last Updated on November 16, 2011 by Steven Meurrens

A myth exists that it costs Canada a lot of money to resettle refugees from abroad.  “Why,” I am sometimes asked, “should my tax dollars pay to fly someone from Rwanda to Canada?”

The short answer is: they don’t.

The longer answer is that the cost of transporting refugees from abroad to Canada is shared between the International Organization for Migration, and the Government of Canada.  The Government of Canada’s portion is $10,000, and is actually structured as a loan to the refugee through the Immigration Loans Program.  In other words, the refugee is expected to repay the Government of Canada for transporting him/her to Canada.

Surrey mayor Dianne Watts recently highlighted the Immigration Loans Program when she called on the federal government to drop the Transportation Loan to refugees.  The Province story on her statements summarized the loan as:

Officials with Citizenship and Immigration Canada told The Province that individual refugees may be responsible to repay up to $10,000 per person under the Immigrant Loans Program to cover the costs of medical examinations abroad, travel documents and transportation to Canada.

 

“The maximum amount of the loan the refugee would pay is $10,000, as there’s a cap,” said a CIC official. “Loans in excess of that amount are paid for by the IOM [International Organization for Migration]. So the refugee pays zero dollars to $10,000, then IOM would pay the remainder if it’s over $10,000.

The loan is not merely a black hole of non-repayment.  In a 2008 Report to Parliament, the Minister of Citizenship and Immigration Canada (the most recent report that I could find) stated that the repayment rate currently exceed 91%.  » Read more about: Refugees and Transportation Loans  »

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